Mixed Motive Defense To Discrimination Claims

When discrimination is a substantial factor for terminating an employee, the employer often has legitimate (non-discriminatory) reasons for the termination. Although employers often raised these mixed motives as a defense to employee discrimination claims, it was unclear whether and to what extent a “mixed motive” theory is an available defense for employers under the Fair Employment Housing Act (“FEHA”).

That changed in February 2013 when the California Supreme Court issued its opinion in Harris v. City of Santa Monica (“Harris“). In Harris, the Supreme Court held that “when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.” Harris, however, was not a complete victory for employers because the Court also held that an employee still could (1) obtain declaratory or injunctive relief by establishing that that discriminatory policies or practices were also a substantial motivating factor in the employer’s decision and (2) if successful, recover attorney’s fees and costs.

The bottom line is that a mixed motive theory provides a defense, albeit an incomplete one. By allowing employees to also pursue declaratory and injunctive relief in mixed motive cases, the Harris decision creates an incentive for plaintiffs’ lawyers to litigate mixed motive cases for the purpose of collecting significant attorneys’ fees.